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TMI Blog1986 (9) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... or Essential Services Maintenance Act. In the premises it is the contention of the petitioner that the detention was illegal and unconstitutional. The State of Maharashtra approved the detention on 24th December, 1985. The detention order as mentioned hereinbefore was under section 3(2) of the said Act. The detenu was arrested on 17th December, 1985 and the grounds of detention were served on the same day. The order alleged, inter alia, that since the year 1979, the detenu had been continuously engaging himself in committing acts prejudicial to the maintenance of supplies and services essential to the community i.e., removing of permanent way material stocked along rail lines for maintenance of rail tracks removing parts of carriages, Wagons and Signal Telecommunication materials utilised for repair of Railway Wagons and maintenance of singnals. It was further alleged that the said detenu used to arrange to remove railway property with the help of his 'gang' and stock the same in his godown, himself remaining behind the scene. It was alleged that in a number of cases railway properties were loaded and carried away in truck No. MHG 6302 which was owned by the detenu. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatended the witness, i.e., the chowkidar on duty and took away the railway property in a Matador. During enquiry into the above complaint, it transpired that the stolen property was unlawfully kept by the detenu in his godown at Nagpur and a search warrant was obtained and the stolen railway property valued at ₹ 25,000 was recovered from the godown of the detenu on 19th June, 1984. The detenu was acquitted by the Magistrate but an appeal had been preferred in the High Court of Nagpur and the same was pending when the detention order was passed. It was further stated that the permanent way material was essential for the maintenance of the railway tracks and the safety of the travelling public. It was normally kept at secure places near the track for ready availability for replacing the broken or unserviceable material in the track. The trains were required to be detained as a result of theft causing loss to the Government and there was delay in making supplies to the public. It was further alleged that as many as 28 wagons were marked sick for repairs and were sent to Ajni workshop for repairs, for want of the required spare parts which were seized from the unlawful possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nown criminals on 21st March, 1985. During investigation it was disclosed that the culprits belonged to the 'gang' of the detenu and that they had threatened the chowkidars on duty and forcibly removed the aluminium wire bundles. It was stated in the detention order that the detenu was the main brain behind this big daring robbery and he used his truck bearing No. MHG 6302 for transporting the stolen property. The detenu anticipating arrest moved the court and obtained anticipatory bail with a view to avoid arrest by the police. The case was pending investigation. It was further stated that the aluminium wire which was stolen was meant for the use of various public and Govt. departments and due to aforesaid criminal activity as indicated above the supply of the wire could not be maintained as it was broken into pieces and made unserviceable. In respect of the sixth case it was further alleged that on receiving information that 90 Lbs, rails 31 meters long were received and kept unlawfully by the detenu in his godown at Nagpur, the inspector of the C.I.B. and Railway Protection Force raided the godown on 22nd May, 1985 and seized 90 Lbs. rails about 30 meters long, break ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article 32 of the Constitution, it is the case of the petitioner on behalf of the detenu that the grounds of detention were vague, irrelevant and non-existent. It was further urged on behalf of the petitioners that the grounds of detention on which the detenu was detained relating to as far back as 1979. It was not open to the detaining authority to order detention of the detenu on the said grounds. It was highlighted that in respect of alleged grounds, criminal cases were pending against the detenu and he had been enlarged on bail. It was submitted that when a judicial authority was satisfied on the materials placed before it that there were no grounds for keeping the detenu in detention, on the same materials the executive authority namely, the detaining authority could not substitute the judicial judgment and order detention to prevent the detenu from acting in a manner prejudicial to the interest of the community. It was submitted by Mr. Garg on behalf of the detenu that in this case in view of the fact that the detenu was on bail, the power of preventive detention was being used to defeat the provisions of the Code of Criminal Procedure and ordinary normal procedure. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his liberty granted by bail by the appropriate judicial authority. Regarding the fifth case, the detenu had already been granted anticipatory bail. The order of the court could not be defeated by keeping the detenu in preventive detention, it was submitted by Mr. Garg. It was urged that requisite satisfaction required under section 3(2) of the said Act was not in fact formed and could not have been formed on the grounds alleged nor was there any rational connection for the formation of such satisfaction. The alleged incidents were denied and it was further submitted that if at all mere infractions of ordinary law could not fall in the category of public order or violation of any law indicated to the maintenance of supply or essential services. It was open to justify the order of detention even if one or more of the six grounds were found to be relevant. The documents, further, did not disclose factual connection with the alleged offences. No statement of the witnesses had been supplied except one related in ground No. 5, it was urged in the petition. It was further submitted that the provisions of Act 7 of 1980 being Prevention of Blackmarketing and Maintenance of Supplies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interviewed by the Advisory Board on 29th January, 1986 and the Board had submitted its report under section 12(1) of the said Act on 3rd February, 1986 which had been received by the Department on the same day. As such the report of the Advisory Board was received by the Government within the stipulated period of seven weeks from the date of detention as required by the law. The detenu had submitted his representation dated 8th January, 1986 to the Advisory Board which was considered by the Board at the time of his interview before the Board on 29th January, 1986. The said representation was received by the Home Department along with the report of the Advisory Board and was considered together with the report of the Advisory Board by Government and the detention order was confirmed by the Government Order. All procedural safeguards of law were duly followed. There was no breach of the same. It is not necessary to reiterate the affidavit in reply. As has been mentioned hereinbefore, on the same facts, the petition under article 226 had been filed in the High Court at Nagpur. The said application was dismissed by a Division Bench of the High Court on 27th February, 1986. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court also the insertion of section 5A of the Act by the National Security (Second Amendment) Act, 1984 was challenged under which even the existence of one ground is sufficient. Before us no ground was canvassed about the validity of the said Amendment and inclusion of section 5A of the Act. It must therefore be held that even the existence of one ground was sufficient to sustain the detention order. Mr. Garg drew our attention to certain observations of Chagla, C.J., in a Full Bench decision of the High Court of Bombay in Maledath Bharathan Malyali v. The Commissioner of Police AIR 1950 Bombay 202. That was a case under the Bombay Public Security Measure Act being Act No. 6 of 1947. There was an order of detention under section 2(A1) of the Act for the collateral purpose. It was held that when the detaining authority had made up his mind to detain a person who was alleged to have committed an offence, then, the detaining authority had made his choice and it would not be permissible, according to that decision, for him to investigate the offence while still keeping the person under detention and not complying with the provisions of the law with regard to inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 3 provides that the Central Government or the State Government might, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it was necessary so to do, make an order directing that such person be detained then the same can be done, (emphasis supplied). The Explanation to this sub- section makes it clear that the expression acting in any manner prejudicial to the maintenance of supplies and services essential to the community does not include acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, as we have noted before. Our attention was drawn to several authorities where this Act has been considered. In a recent decision of this Court, one of us (Ranganath Misra, J) had to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed two separate affidavits upholding the issue of the detention order and explaining the grounds and the reasons for the same. If those affidavits are taken into consideration, as these must-be then there is no substance in this ground. In the aforesaid case assurance was given before this Court in an earlier case that preventive detention would not be resorted to against political opponents. In the said decision the facts were entirely different. That was a case affecting the liberty of a subject on political consideration. For maintaining supplies throughout the country the railways was per se essential, and, therefore, interference with railway lines would be endangering the maintenance of supplies-see the observations of this Court in Mohd. Subrati Alias Mohd. Karim. v. State of West Bangal [1973] 2 SCR 990 at 992. This Court in Remeshwar Shaw v. District Magistrate, Burdwan Anr., [1964] 4 SCR, 921 had to deal with preventive detention of a person who was in jail custody. There the petitioner was detained by an order of the District Magistrate under the provisions of the Preventive Detention Act, 1950. The order recited that the District Magistrate was satisfied that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3(1)(a) of the said Act did not preclude the authority from passing an order of detention against a person while he was in detention or in jail. But the relevant facts in connection with the making of the order might be different and that might make a difference in the application of the principle that the order of detention could be passed against a person in jail. The Court, however, was reluctant to lay down any inflexible test. In that case the petitioner was ordered to be released on the ground that he was served with the order of detention while he was in jail custody. In the instant case before us, the petitioner is not in jail custody. In Makhan Singh Tarsikka v. State of Punjab [1964] 4 SCR 932 the court was concerned more or less with the same facts. The court observed at p. 937 of the report that the aspect of the matter which was emphasised in the case of Rameshwar Shaw (supra) was the relevance of considerations of proximity of time and concluded that whether an order of detention could be passed against a person who was in detention of in jail would always have to be considered in the facts and circumstances of each case. The order of detention in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e too afraid to depose against to desperate character, cannot come under the exceptions carved out by the court to this category. It was further emphasised that there must be a live link between the grounds of criminal activities alleged by the detaining authority and the purpose of detention. This credible chain is snapped if there was too long and unexplained interval between the offending acts and order of detention. If the detaining authority took the chance of conviction and, when the court verdict went against it, feel back on its detention power to punish one whom the court would not convict, it was an abuse and virtual nullification of the judicial process. But if honestly, finding a dangerous person getting away with it by overaweing witnesses or concealing the commission cleverly, in authority thought on the material before it that there was need to interdict public disorder at his instance he might validly direct detention. In the present case, the acts were serious, being bomb hurling and brickbat throwing in public places creating panic. Involvement of the petitioner was discovered only during the investigation. It was further held that the argument that detention with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detaining authority is necessarily absent in such a case. It was pointed out in Rameshwar Shaw's case (supra) that before an authority can legitimately come to the conclusion that the detention of the person was necessary to prevent him from acting in a prejudicial manner, the authority had to be satisfied that if the person was not detained, he would act in a prejudicial manner and that inevitably postulated freedom of action to the said person at the relevant time. The Court noted two types of cases. Those two cases were concerned with the service of an order of detention under the Preventive Detention Act or under the Rules on a person who was in jail in one of two circumstances namely-where he was in jail as an under-trial prisoner and the period for which he was in jail was indeterminate or where he was in jail as a convicted person and the period of his sentence had still to run for some length of time. In those cases the service of the order of detention under the Preventive Detention Act or under the Rules in jail would not be legal for one of the necessary ingredients about which the authority had to be satisfied would be absent, namely, that it was necessary to deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... metimes described as jurisdiction of suspicion depended on subjective satisfaction of the detaining authority. If the detaining authority was of opinion on grounds which were germane and relevant, that it was necessary to detain a person from acting prejudicially as contemplated by section 3 of the Act then it was not for this court to consider objectively how imminent was the likelihood of the detenu indulging in those activities. There was no legal bar in serving an order of detention on a person who was in jail custody if he was likely to be released soon thereafter and there was relevant material on which the detaining authority was satisfied that if free, the person concerned was likely to indulge in activities prejudicial to the security of the State or maintenance of public order. The Court stressed upon the fact that it was always the past conduct, activities or the antecedent history of a person which the detaining authority took into account in making a detention order. No doubt the past conduct, activities or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person was ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on therefore was serving a long term of imprisonment or was in jail custody as an undertrial and there was no immediate or early prospect of his being released on bail or otherwise, the authority could not legitimately be satisfied on the basis of his past history or antecedents that he was likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. To the similar effect are the observations in Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur and Another. [1975] 4 SCC 164 at 167 and 169. Mere service of detention order in jail per se is not bad. In Vijay Narain Singh v. State of Bihar Ors., [1984] 3 SCR 435 it was highlighted by two learned judges (O. Chinnappa Reddy E.S. Venkataramiah, JJ) of the three judges bench consisting of O. Chinnappa Reddy, A.P. Sen E.S. Venkataramiah, JJ. that the law of preventive detention was a hard law and therefore should be strictly construed. Care should be taken that the liberty of the person was not jeopardized unless the case fell squarely within the four corners of the relevant law. The law of preventive detention was not to be used merely to clip the wings of the accused who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedural safeguards for the protection of the individual is normally the high duty of public official but in all circumstances not the highest. The law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority. In Shiv Ratan Makim s/o Nandlal Makim v. Union of India and Others [1986] 1 SCC 404 it was stressed that the jurisdiction to make orders for preventive detention was different from that of judicial trial in courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would not operate as a bar to a detention order or render it mala fide. A fortiori therefore the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention. If an order of detention is made only in order to bypass a criminal prosecution which may be irksome because of the inconvenience of proving guilt in a court of law, it would certainly be an abuse of the power of preventive detention and the order of detention would be bad. But if the object of making the order of detention was to prevent the commission in future of acti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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